MEF, Born 1996 a Child Within the Meaning of the Protection of Sexually Exploited Children Act Appellant - v. -, 2012 ABQB 268

Court of Queen ’ s Bench of Alberta Citation: MEF v. Alberta (Child, Youth and Family Enhancement Act, Director), 2012 ABQB 268 Date: 20120425 Docket: FL01 13259 Registry: Calgary Between: MEF, Born 1996 a Child Within the Meaning of the Protection of Sexually Exploited Children Act Appellant - and - The Director of Child Welfare Respondent Restriction on Publication: No one may publish any report of a proceeding under the Protection of Sexually-Exploited Children Act that contains information which may identify the child involved, or a guardian of that child.

See the Protection of Sexually-Exploited Children Act , s. 6.3(1). _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice R.E. Nation _______________________________________________________

Appeal from the Order by The Honourable Judge R. O’Gorman Dated the 25 th day of October, 2011 Docket: 111257705W1 Introduction [ 1 ] This is an appeal from an order of Judge O’Gorman granted on October 25, 2011. He issued an 18 day order under the Protection of Sexually Exploited Children's Act , R.S.A. 2000, c. P-30.3 (the Act ) on the basis that the 15 year old appellant was "at risk".

Although not expressly verbalized, or stated by him, inherently to issue the order, he must have decided that she was sexually exploited as she was engaging or attempting to engage in prostitution. [ 2 ] The appeal is an appeal on a point of law, and that is, in this case, did the judge err in interpreting the test in s. 1(2) of the Act to be one of finding that the child is in need of protection because she was a young person at risk when making the confinement order. The Relevant Facts [ 3 ] Here, the appellant, who had consented to an earlier 21 day order under the Act , opposed an extension.

She had written in her diary words to the effect that she was "living with a 20 year old boyfriend, in the role of a maid" and that she "fucks three times a night not because she wants to but gives in because it gives her a place to sleep at night". She acknowledged that she enjoyed her stay at PCHAD because her needs were met without having to exchange sex for basic necessities.

There was no evidence she walked the streets, was pimped or was in any way involved in formal prostitution other than if sleeping with a 20 year old boyfriend for a place to stay falls under the definition of prostitution in the Act . [ 4 ] The judge at the hearing after being invited by appellant's counsel to let the young person address any concerns the court may have from the evidence, asked her where she would go if released, whether she was benefitting from the programs she had received so far, and if there was any further period of time of detention that she would consent to, if some plans were made to look at some alterative residential placement for her.

She indicated she would agree to ten to fourteen days. The Judge then asked: “How about 18” and she replied: “I think that is a little excessive, but if you are looking for placement, then that is fine.” [ 5 ] The judge then told a personal anecdote, indicated he wanted the young person to make it to adulthood because some people would exploit her or worse, and then allowed the Director's application for 18 days.

He indicated he would not take away a young person's liberty easily, but only did it because: "we need to have a better plan in place." [ 6 ] When specifically asked by counsel if he was making a finding that the young person was unwilling to disengage from prostitution, he indicated he would make a finding that the young person was "at risk". He was concerned where she would go if he released her that day. He simply stated that she is "at risk". The Law [ 7 ] The relevant definition

section of the Act states the following: s. 1(2) For the purposes of this Act , a child is in need of protection if the child is sexually exploited because the child is engaging in

prostitution or attempting to engage in prostitution. [ 8 ] The order was made under s. 3(4) which allows a court to make an order for further confinement of the child for up to 21 days, if on application the Court is satisfied that: (

a) release of the child from a protective safe house presents a risk to the life or safely of the child because the child is unable or unwilling to stop engaging in or attempting to engage in prostitution (

b) less intrusive measures are not adequate to reduce the risk and (

c) it is in the best interest of the child to order a period of further confinement for the purposes of making programs and other services available to the child in a safe and secure environment. [ 9 ]

Section 3.2 provides that a child may appeal an order by the court once during the period of any order and once during the period of any renewal, and the review must be heard not more than 5 days after the notice of review is filed with the Court. Discussion of the Issues [ 10 ] The Crown opposes the appeal on four grounds: 1. It objects to the Charter of Rights being raised on the appeal for the first time. 2. It argues that the issue is moot, the youth is not longer subject to a confinement order. 3. It argues the order is a consent order and should not be appealed without leave. 4.

It argues that the judge correctly found that swapping sex for rent or a place to stay falls within the definition of prostitution in the Act . 1. The Crown objection to the Charter of Rights being raised on the appeal for the first time [ 11 ] Although the Charter is referenced in the appellant's written argument, this is not a Charter challenge to the legislation, but merely a reference to the Charter considerations of freedom of a person. [ 12 ] I do not see that raising the liberty rights of a young person granted by the Charter , in argument on this appeal means the appeal should not be considered.

The reference to the Charter in the written brief is to set out the restriction of liberty here, not to raise a Charter challenge for the first time. 2. The Issue of Mootness [ 13 ] The Crown argues that the decision is moot, as the 18 day order has long ago expired for this appellant. If the dispute has disappeared which affects the rights of the parties, the Court has a discretion to hear the case. It has to look at factors such as the

importance of the issue, the presence of an adversarial relationship and the concern of judicial economy and the Court's proper law-making function.

The Court will usually decline to hear the appeal unless there is a live controversy underpinning the case so that by deciding the case, the Court would resolve a controversy or an issue of importance that may have a broader application. (See Borwaski v Canada (Attorney General) , 1 SCR 342 ). [ 14 ] When a decision in each individual case has to be made quickly, but the decision has broader implications and may reoccur, where there is never enough time to properly canvass the issues and where appellant direction is necessary, the test will usually be met.

For example, the question of whether a minor who is a Jehovah Witnesses can be forced to have a blood transfusion has been litigated even though moot, as the facts are often emergent but the religious issue recurs. The question is whether there is an important principle at stake, that may be evasive of review, and guidance can be provided to judges and litigants who must decide such issues in the future. [ 15 ] Here, the appellant argues that decisions under the Act are often made quickly, and there is never enough time for appellate review in an 18 day period of confinement.

Counsel argues that the issue is very important, as this Act does not address children who are being sexually exploited other than by prostitution. Counsel says the Act should be amended to "plug a hole" to include sexual exploitation without "walking the street prostitution". The appellant also argues that an appellate decision is needed to specifically direct the Family Court as to how to make these decisions and to provide a detailed definition of prostitution. For instance: does it include swapping sex for items; non cash payments, rent, alcohol, drugs, etc.

The appellant's counsel eloquently argued that there are gaps in the legislation, and those gaps should be "plugged" by amendment sparked by appellant court review. The appellant argues the current wording of the Act , framed as “prostitution” does not cover her situation. Her situation, it is argued, is at most sexual exploitation, but not sexual exploitation as defined by the wording of the Act . [ 16 ] The Crown responds that this is not a case in the Director's eyes that needs this type of review.

If law reform is desired to include children at risk of general sexual exploitation, the Crown argues the proper place for counsel or others to go is the legislature. It also points out that the statute itself provides for an appeal, so that the liberty interests of this young person could have been reviewed, to make a difference to her situation, as well as insist the Family Court level review the definition of "prostitution". An appeal was never filed under

section 3.2 of the Act in this case. [ 17 ] I concede that the narrow issue of law in terms of whether the definition of prostitution covers the young person’s action here is intellectually interesting. I find it concerning that the judge did not make a specific finding that the child was engaged in prostitution, as that is the basis of the definition in the Act , and it is not sufficient to find a child "at risk" or sexually exploited in other ways. However, I decline to deal with this moot point for a number of reasons.

Firstly, there is an appeal provision that would have allowed this order to have been reviewed in a very short period of time. This would have allowed the Court to address the child's liberty interests and also provide the Family Court a chance to comment on the

interpretation of the word prostitution in the context of the Act . Secondly, there is no evidence before me that this fact situation is common, or likely to reoccur. And thirdly, I am mindful that bad facts can create bad law on a "test case" scenario. [ 18 ] What the appellant asks for is not only a review of the definition of prostitution in this case, but also guidelines about how that determination should be made under this legislation. It also seems that the appellant is asking for recommendations for law reform, related to sexually exploited children who may not be engaged in prostitution.

If this is in fact needed, the first review should come from Family Court, which deals with these cases on a day to day basis. If this Court was to undertake that type of review in this case, it would do so on the very limited facts of this case, with no evidence of the general situation of young people who may be considered sexually exploited. It would also have no benefit of any detailed consideration of the issue by the Family Court, which deals with these matters day to day.

I do not think such a wide review is an appropriate use of limited judicial resources. [ 19 ] As a result, I find the decision is moot and the narrow issue is not an issue of importance that should result in the Court exercising its discretion to perform the review requested. 3. The Argument about a Consent Order [ 20 ] The transcript does indicate that the young person here was eager for the department to place her in a group home.

The Director realized at the time that she could not be returned to her father or mother, but the Director seemed reluctant to consider the group home idea and a foster placement appeared difficult. The youth, when asked by the judge did indicate that she would consent to some extension, 10 to 14 days, but not the 21 days the Director was requesting. When pressed, she agreed to an 18 day order rather than the 21 day order.

[ 21 ] The young person was not a complete stranger to the child welfare system, as she had originally consented to the first 21 day period (the jurisdiction for which under the Act may also have been questionable, but that issue is not before the Court). [ 22 ] Counsel for the young person argued this was not a consent order, as although the young person before the hearing was willing to agree to a 10 to 14 day order, when the Director refused that compromise, and went to the hearing to get a 21 day order, the discussion between the young person with the judge cannot be considered consent. [ 23 ] The young person clearly wanted placement, but wanted it faster than 21 days.

She was in an unenviable position, unwilling to return to either parent, but unable to be placed. The fact of her willingness to consent to something to get placed, should not be a reason to justify an order if there is no jurisdiction for the Court to make the order (i.e. if she was not unable or unwilling to stop engaging in or attempting to engage in prostitution). [ 24 ] In these circumstances, I do not consider this a consent order, and thus this argument alone would not disallow the appeal. 4.

The Basis of the Appellant ’s Appeal [ 25 ] This appeal if it was heard, would deal with factually whether the judge made an appropriate finding that the child was engaged in prostitution, his reasons appear only to have found her at "risk". The meaning of the word "prostitution", and the finding that the judge seems to have made presents an interesting issue, but as I have indicated, this is not the case to hear a moot issue. [ 26 ] However, I would say that the judge did not appear to address whether the activity of the appellant fell under the wording of the legislation.

No doubt more appeals from the Family Court will be brought forward, if the issue of whether the definition of prostitution in the Act applies to this type of situation is a common issue before that Court. However, the first appeal should be made as allowed under the Act , to the Family Court, where the young person’s liberty can be addressed and both parties can provide the evidence for a proper consideration if a more detailed

interpretation of the Act is necessary or desirable. Result [ 27 ] As a result, I decline to deal with this appeal, as the issue is moot. Heard on the 29 th day of March, 2012. Dated at the City of Calgary, Alberta this 25 th day of April, 2012. R.E. Nation J.C.Q.B.A.

Appearances: Jay C.P. Damen, Arkell Damen Hoffman for the Appellant Michelle S. Lee, Alberta Justice - Family Law Branch for the Respondent